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Towards Better Protecting the Environment in Armed Conflict
May 10, 2021 By Richard Pearshouse
Environmental dimensions of armed conflicts
Years of armed conflict have devastated Yemen’s environment, contributing to one of the worst humanitarian crises in the world. Attacks on water infrastructure cut off thousands of people from access to safe drinking water, exacerbating a cholera outbreak that has caused an estimated 4,000 deaths since April 2017. Fighting also damaged Yemen’s agricultural infrastructure, contributing to the food insecurity of an estimated 16.2 million people.
The environmental impacts of the conflict in Yemen could worsen. The oil tanker Safer has been left moored off an oil terminal in the Red Sea for over five years, holding over one million barrels of crude oil. The UN has warned that the Safer tanker is at risk of leaking, exploding, or catching fire due to the lack of maintenance, although the Huthi armed group (which controls the area) has repeatedly delayed access to a UN technical assessment team.
The use of Agent Orange in the Viet Nam War and burning oil fields in the first Gulf War are two of the most appalling examples of environmental devastation in conflict. More recently, the decade of unrest and conflict in Syria has taken a heavy toll on the environment. In Iraq, the armed group, “Islamic State,” committed war crimes and crimes against humanity by deliberately targeting Iraq’s rural environment, including the irrigation wells of poor, small-holder farmers. In eastern Ukraine, a highly industrialized region, the conflict between Ukrainian forces and Russia-backed armed groups has compromised almost 250 industrial sites, including metallurgical and chemical plants that pose serious risks to the environment.
The need to better protect the environment before, during (including in situations of occupation), and after armed conflicts is increasingly clear. Recent efforts by the International Law Commission (ILC), a UN body of legal experts responsible for the promotion of the progressive development of international law and its codification, are a decisive step forward.
Laying the legal framework
In 2019, the ILC proposed 28 draft principles for the protection of the environment in relation to armed conflicts. The draft principles establish measures to protect the environment throughout the cycle of an armed conflict. They comprise provisions to prevent and mitigate environmental damages (mostly before and during armed conflicts, including in situations of occupation) as well as remediate in the aftermath of the conflict.
Preventive measures include, for example, the designation of areas of major environmental and cultural importance as protected zones affording protection against attacks, “as long as [they do] not contain a military objective.”
The draft principles also address the role that the exploitation of natural resources play in fuelling armed conflicts, particularly relevant in intrastate conflicts, which are predominant nowadays. This attention is welcome given that the UN Environment Programme noted in 2009 that 40 percent of the intrastate conflicts that occurred in the previous 60 years were associated with natural resources.
The draft principles reaffirm the prohibition on the pillage of natural resources. They also call on states to adopt measures aimed at ensuring that business enterprises operating in or from their territories exercise due diligence with respect to the environment and are held liable for environmental harm they cause in conflict zones.
The draft principles include provisions addressing situations of occupation, by restating the general obligations of occupying powers to prevent harms to the protected population, to ensure the sustainable use of natural resources, and to exercise due diligence to not cause harm beyond the occupied territory.
Remedial measures—including post-conflict environmental assessments, the remediation of environmental damage, and compensation to individuals and communities affected—are particularly important as part of peacebuilding and reconstruction efforts. But they are also crucial to upholding economic, social, and cultural rights; environmental damage from conflict can restrict or cut access to the basic necessities of life such as food and water, disrupt those livelihoods dependent on the environment, and damage human health where soil, air, and water are contaminated with hazardous substances. Often these effects reverberate for years after the guns fall silent. Failing to address them aggravates human suffering and may increase instability in highly volatile settings.
It’s important to note that the draft principles do not create new legal obligations. Instead, they clarify existing international obligations from different branches of applicable law, including international humanitarian law, international human rights law, international criminal law, and international environmental law. For example, the prohibition of pillage and the obligation of states to make full reparation for environmental damage are current existing obligations under international law.
Other draft principles make recommendations to be adopted by States. For example, the draft principles on business enterprises reflect this advisory approach. The draft principles recommend that States take appropriate measures to ensure businesses operating in or from their territories exercise due diligence with respect to the protection of the environment and are held liable for environmental harm caused when acting in an area of armed conflict.
The way forward
States and other parties can make comments to improve the draft principles until June 2021 (the ILC’s background documents on this issue are available here). Afterwards, the ILC will proceed with a second reading on the principles before they are considered by the UN General Assembly in 2022.
There is certainly room for improvement of the current draft and states, civil society organizations, and international organizations should seize this opportunity. One issue not currently covered by the draft principles is the responsibility of non-state armed groups for environmental damage. Given the preponderance of non-state armed groups in armed conflicts, addressing this gap is urgent.
There’s also room to improve the provisions relating to environmental clean-ups. For example, remedial measures should include the obligation to meaningfully consult with the very people and communities affected by environmental damage. More broadly, there’s a pressing need for an international mechanism to monitor the protection of the environment in armed conflict and make determinations regarding alleged violations of international law.
The approval of the draft principles will be an important milestone that will set a benchmark for the protection of the environment in armed conflicts. But it is not the end of the journey. States should assess their practices against that framework and ensure that binding national legislation implements it fully. International organizations and civil society should have a role in closely monitoring these processes to ensure their success.
Richard Pearshouse is the Head of Crisis and the Environment at Amnesty International
Sources: Amnesty International, Conflict and Environment Observatory, International Institute for Sustainable Development, International Law Commission, Organization for Security and Co-operation in Europe, Reuters, United Nations Office of Legal Affairs, UNICEF, UN News, World Food Programme, World Health Organization, World Politics Review
Photo Credit: Massive destruction caused by the war and damaged most of the cities and neighborhoods of Taiz City, Yemen, courtesy of anasalhajj Shutterstock.com.
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